Only an aggrieved individual can file job discrimination charges against a business.

Equal Employment Opportunity Commission

The EEOC is a federal administrative agency created by Congress in the Civil Rights Act of 1964 to administer and enforce Title VII of that statute. The EEOC also administers and enforces the ADA, ADEA, and the Equal Pay Act of 196363 and provides oversight and coordination of all federal regulations, policies, and practices affecting equal employment opportunity.

The EEOC consists of five commissioners and a general counsel, all appointed by the president and confirmed by the Senate. The president designates the chairman, who acts as chief executive officer of the commission. All commissioners serve for 5-year, staggered terms. The commissioners make EEOC policy, whereas the general counsel supervises equal employment opportunity litigation brought on behalf of complainants.

EEOC staff process and investigate complaints of employment discrimination against private and public entities. In most instances, charges must be filed with the EEOC within 180 days of the alleged employment discrimination (extended to 300 days if the state has an antidiscrimination agency). If the EEOC investigation of a charge concludes that there is reasonable cause that actionable employment discrimination occurred, it will initiate conciliation procedures to try to resolve the charge to the reasonable satisfaction of the complainant at this lowest level of adjudication. That failing, the EEOC may sue the respondent in federal court on the alleged victim's behalf. (Only the Department of Justice may bring suit against a state or local governmental entity, however.) If the EEOC does not file a lawsuit, an aggrieved private party may file a private lawsuit against an offender within 90 days of dismissal of the case by the EEOC.64

EEO, AA, and Quotas

Equal employment opportunity, affirmative action, and quotas are important terms relevant to staffing organizations (Heneman et al., 1997: 62–64). Equal employment opportunity (EEO) refers to practices that are designed so that all applicants and employees are treated similarly without regard to protected characteristics such as race and sex. For example, suppose a vacant position requires applicants to undergo a written job knowledge test and an interview to assess applicants. Anyone is free to apply for the position, and all who apply will be given both the test and the interview. How well each performs on both screening methods determines who is hired. Thus, all applicants have an equal opportunity and the job will be offered following an unbiased assessment.

Affirmative action (AA) focuses on procedures employers use to correct and abolish past discriminatory employment practices against minority group members, women, and those in other groups, while setting goals for hiring and promoting persons from underrepresented groups. AA may be voluntarily undertaken by an employer or court ordered. In our previous example, AA could result if there was a failure to recruit women and minority group members or if the job knowledge test was biased. Then management would make a good faith effort to meet certain hiring goals, for instance, by improved recruiting.

Quotas are rigid hiring and promotion requirements. In our previous example, a hiring formula would be set that specifies the number or percent of women and minorities to be hired.

These concepts, as applied in the workplace, have raised considerable legal turmoil and controversy over whether in fact they have been successful in correcting discrimination. The issue of “reverse discrimination” has intensified the debate. Court decisions provide guidelines for employers.

Case Examples

Disparate treatment in hiring remains a major problem. The Equal Employment Opportunity Commission (EEOC) reported that employers are still barring large groups of people from jobs based on race, sex, age, and other prohibited reasons that are described in the following case examples.

EEOC lawyers recounted a hiring case that was litigated against WalMart. The case arose out of a charge by two deaf applicants who were expressly denied employment by the company because they were deaf. As part of a negotiated settlement, the company aired a commercial on Arizona television stations featuring the two, telling viewers in sign language, with a voiceover, their story and educating the public about the nation’s equal employment laws. A video of that commercial was shown at the meeting.

Other EEOC officials cited recent agency lawsuits. An EEOC attorney detailed the EEOC’s suit against Area Temps, a northeast Ohio temporary labor agency, which agreed to pay $650,000 in July 2010 for its systematic practice of considering and assigning (or rejecting) job applicants by race, sex, Hispanic national origin, and age. The EEOC said that Area Temps used code words to describe its clients and applicants for discriminatory purposes, such as “chocolate cupcake” for young African American women, “hockey player” for young white males, “figure skater” for white females, “basketball player” for black males, and “small hands” for women in general.

An employee, who worked for Area Temps, told the Commission that the company fired her for refusing to help it conceal evidence from the EEOC. Lopez-Rodriguez said she had left demographically coded cards, which the company used to discriminate, in her Rolodex, instead of cooperating with the company’s request to destroy them prior to the EEOC investigator’s visit.

A company which provides janitorial services to Chicago’s O’Hare Airport, agreed to pay $3 million after the EEOC sued the company for failing to recruit and hire African Americans. An EEOC supervisory trial attorney in Chicago who handled the Scrub case said an economist’s report showed that “the statistical disparity in hiring rates between African-American applicants and non-African-American applicants was so high that there is effectively zero probability that Scrub’s failure to hire African-Americans occurred by chance.”

A job applicant, who was one of several African American discrimination victims in the Scrub case, told the panel how she tried to apply for a job at Scrub. Despite janitorial experience and 15 advertised openings, she said she was told she would be contacted if the company was interested. By contrast, a Hispanic woman who applied at the same time was asked to stay for an interview. An African American friend “went to Scrub’s office later that same day. She told me that she had a similar experience. The receptionist took her application and told her that someone would call her if Scrub was interested in her. While she was there, there were four Hispanic women and one Hispanic man filling out applications. All five of the other applicants were asked to stay for an interview,” but she was not.

The Equal Employment Opportunity Commission

While OFCCP is limited to combating discrimination by federal contractors, who employ roughly 21% of the United States’ workforce, the Equal Employment Opportunity Commission has a wider purview. Federal agencies and all but the smallest employers (or those filing with OFCCP) must file annual reports that divide their employees by race and sex. When complaints are received by the agency against an employer, the agency investigates, and then attempts to reach a conciliation agreement with the employer, and if that fails legal action can be taken by the agency or the worker can file a suit. Conciliation agreements may include ‘goals and timetables’ or they may be imposed against refractory businesses by court order or consent decree.

Reasonable Accommodation

An accommodation is a “change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”47 Accommodations can be made in the application process, in the job itself, or to enable the enjoyment of equal benefits and privileges by employees with disabilities. The EEOC regulations provide several examples of reasonable accommodation. An employer may make a reasonable accommodation by making the physical facilities readily accessible or by job restructuring. Job restructuring may be accomplished by reallocating marginal job functions to a nondisabled employee.

The Office of Disability Employment Policy of the U.S. Department of Labor supports the Job Accommodation Network (JAN), a free consulting service designed to increase the employability of people with disabilities. This web site, located at http://www.jan.wvu.edu/, provides individualized worksite accommodation solutions and technical assistance regarding the ADA and other disability-related legislation.

Tribal Preference Employment Laws

Since the US Supreme Court decided Morton v. Mancari [10] the preferential hiring of Native Americans by federal agencies and tribes themselves is an exception to the nondiscrimination provisions of the Equal Employment Opportunity Law. This exception is based on the distinct political status tribes and their members have that is cemented in the Indian Commerce Clause of the US Constitution that authorizes Congress “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes” [11]. Even with the option of Indian preference in hiring as a legal option, tribes will most likely have to reach outside of the local tribal member labor pool to find employees with the professional skill sets required to address the challenges facing the future mobility workforce. As a result, the preferential treatment in employment or contracting by a tribal government to a Native American individual or business is based on the individual’s political status as a member of a federally recognized tribe rather than that person’s race. Most tribes having a tribal preference in hiring law to maximize employment opportunities for tribal members do not have enough tribal members to fill the requirements.1

This gap in tribal members available for employment in the new mobility workforce is further exacerbated by the education pipeline for tribal youth. The current high school graduation rate for Native American students is 69% compared to the national average of 80% and 28% of Americans complete college, while only 13% of Native Americans hold a college degree [12]. The qualifications of the new mobility workforce largely require some level of academic training. On a tribal level, there is a shortage of educated and technically trained tribal members to fill the needs of the new mobility workforce.

Another challenging element for tribes in the new mobility workforce is worker recruitment and retention. Native American students who attend a college or university are exposed to a wide range of influences and opportunities in federal and state agencies and in the private sector. There is a high level of competition for high achieving Native American graduates particularly in the hard sciences like engineering, information technology, and construction management. Even when a college graduate does take a position with their tribe, the wages are typically much lower than their peers in other agencies. This disparity in compensation leads a significant number of people to leave tribal employment for greener pastures at another agency or company. To make matters even more dire, tribes are exempt from paying Davis Bacon Act wages when they use federal funds in a force account approach rather than competitive contracts. This means a person operating a motor grader for a tribal road maintenance program can receive one-half or less the wage of a person performing the same function for a contractor or a local county road agency. Tribes remain at a distinct economic disadvantage in the competition for and retention of qualified workers in the current environment and are even further disadvantaged in the new mobility era.

The tribal transportation workforce issues largely mirror the challenges facing their national counterparts. The tribal workforce is aging and there is a serious need for new people to bring new skills. The outstanding legal scholar Charles Wilkinson reminds us that, “Properly understood, modern American Indian history has been made by Indian leaders who seized the initiative, brought forth their grievances and proposed solutions, and more often than not, accomplished the kind of progress they dared to seek” [13]. The challenge stands before the tribal leaders of today and those that will soon follow to sustain and enhance the expertise required to implement transportation programs and negotiate for improved access to resources, both financial and technical. A career in transportation is rewarding in many regards. The ability to support the economy, improve the quality of life, and even save lives through crash reduction are just a few accomplishments that will accompany a nice big pay check. That is the kind of opportunity and future that is possible in the tribal transportation world and there are those who dare to seek.

Work

Since 2002, the International Gay and Lesbian Chamber of Commerce (IGLCC) has evaluated corporate equality and inclusiveness. Their corporate equality index counts as fully inclusive a workplace that explicitly includes sexuality and gender identity in its equal employment opportunities policy and employment benefits and that is publicly committed to equality and responsible corporate citizenship. A total of 305 corporations were given the IGLCC’s top rating in 2010 compared with 13 in 2002. The human rights campaign Degrees of Equality reports that since 1995, the majority of Fortune 500 companies have prohibited discrimination based on sexual orientation, and since 2006 they have also offered partner benefits.

Nonetheless, a 2009 national study in the United States found that more than half of all LGBTQ employees surveyed hide their sexual identity at work; among younger workers, the proportion is even higher. Only 5% of workers aged 18–24 years are completely out at work. Concealing sexual identity at work inevitably involves lying or discomfort with casual conversation, given how often talk about social lives, spouses, relationships, and dating occurs. Homophobic language and jokes are key indicators of how safe it is to come out; the majority of the survey’s respondents reported hearing such jokes and comments at work. Given safety issues, it is no surprise that most respondents indicated that they do not report these remarks; 9% say they do raise such issues with a supervisor, and 5% report it to human resources. A comparable British survey conducted by UNISON, the United Kingdom’s largest public sector union, found that more than half of the respondents experienced harassment or other discrimination on the job because of their sexual orientation. Discrimination included unfair work assignments, being passed over for promotion or training, verbal and physical abuse, threats from co-workers, nonrecognition of their families, and denial of benefits to which they were entitled.

Unions have been at the forefront of efforts to overcome discrimination. The European Trade Union Commission leadership urged its membership to recognize discrimination against workers on the basis of sexual orientation and gender identity as a threat to union solidarity as a whole. However, work remains to be done on this front. Although the vast majority of European trade unions have equality policies, not all of these explicitly include sexual orientation or gender identity. ILGA-Europe’s survey of trade unions found that almost half of the unions with such policies do not regard them as successful in contributing to a respectful work environment for LGBT people.

Federal Legislation

•

Equal Pay Act of 1963: This legislation requires that men and women be paid equally if they work at the same location at similar jobs. Exceptions include a seniority or merit system and earnings through quantity or quality of production. The Equal Employment Opportunity Commission (EEOC) enforces the act.

Civil Rights Act of 1964, Title VII: This law, amended several times to expand its coverage of protected groups, prohibits employment discrimination based on race, color, religion, gender, or national origin. Title VII prohibits discrimination with regard to any employment condition, including recruiting, screening, hiring, training, compensating, evaluating, promoting, disciplining, and firing. It also prohibits retaliation against an individual who files a charge of discrimination. The law impacts both public and private sectors. Title VII requires that organizations go beyond discontinuing discriminatory practices and gives preferences to minority group members in employment decisions; this is referred to as affirmative action. Congress established the EEOC to enforce Title VII.

Age Discrimination in Employment Act of 1967: The ADEA prohibits employment discrimination on the basis of age in areas such as hiring, firing, and compensating. It applies to private employers with 20 or more employees and all government units. This law protects employees between 40 and 65 years of age, but in 1978, the law was amended to afford protection to age 70. In 1986 the law was amended again to eliminate the upper age limit. Mandatory retirement is prohibited, absent a suitable defense. The EEOC enforces this act.

Equal Employment Opportunity Act of 1972: The purpose of this federal law (EEO) is to strengthen Title VII by providing the EEOC with additional enforcement powers to file suits and issue cease-and-desist orders. Further, EEO expands coverage to employees of state and local governments, educational institutions, and private employers of more than 15 persons. EEO programs are implemented by employers to prevent discrimination in the workplace and to offset past employment discrimination.

Rehabilitation Act of 1973: This act requires government agencies and contractors with the federal government to take affirmative action to hire those with physical or mental handicaps. The Office of Federal Contract Compliance Procedures enforces this act.

Pregnancy Discrimination Act of 1978: This law requires pregnancy to be treated as any other type of disability. In addition, EEO protection is afforded to pregnant employees.

Americans with Disabilities Act of 1990: The ADA prohibits discrimination against individuals with disabilities and increases their access to services and jobs. The law requires employers to make reasonable accommodations for employees with a disability if doing so would not create an undue hardship for the employer. Reasonable accommodations include making existing facilities accessible and modifying a workstation. This law has had a significant impact on the security and safety designs of buildings. Access controls, doorways, elevators, and emergency alarm systems are among the many physical features of buildings that must accommodate disabled people. The EEOC enforces this act.

Civil Rights Act of 1991: This legislation provides additional remedies to deter employment discrimination by codifying disparate impact concepts and allowing plaintiffs to demand a jury trial and seek damages. This act requires businesses to prove that the business practice that led to the charge of discrimination was not discriminatory but job related for the position and consistent with business necessity. The EEOC enforces this act.

Ivancevich (2001: 74) writes: “Disparate impact or unintentional discrimination occurs when a facially neutral employment practice has the effect of disproportionately excluding a group based upon a protected category.” (The U.S. Supreme Court expanded the definition of illegal discrimination to include disparate impact as illustrated in the Griggs case.)

Disparate treatment is another type of discrimination whereby an applicant claims that he or she was not hired because of a discriminatory reason. Examples are asking only one applicant about age or asking only female applicants about childcare.

Family and Medical Leave Act of 1993: This law requires employers to provide 12 weeks of unpaid leave for family and medical emergencies without employees suffering job loss. The U.S. Department of Labor enforces this law.

Uniformed Services Employment and Reemployment Rights Act of 1994: Under this law, employees who serve in the military have certain rights to take leave from employment and return to employment following military obligations. The U.S. Department of Labor enforces this law.

Genetic Information Nondiscrimination Act of 2008 (GINA): This legislation prohibits discrimination resulting from genetic information. The EEOC enforces this law.

Social Legislation and Court Decisions

Governments in most developed countries around the world have passed social legislation, and courts have issued decisions on unfair discrimination in employment. While some countries are more aggressive in enforcing these issues than others, the laws and court decisions frame national policy on equal employment opportunity (EEO). In the United States, discrimination in employment is prohibited on the basis of race, religion, national origin, gender, age, and disability. Aggrieved individuals have the right to pursue their claims in court. At the organizational level, HRM professionals work with top managers to develop and implement EEO policies to ensure that individuals are treated fairly in all aspects of the employment relationship.

Ban the Box

For much of the past century employers would include check-off boxes as part of the employment application. Many still use these in the electronic format. However, one venerable question concerning arrest is now illegal in over a dozen states. The Equal Employment Opportunity Commission (EEOC) has conducted a national campaign to inform employers that the box asking about past arrests should be eliminated. Some people are arrested in the exercise of their political rights; many others are arrested for charges that are dismissed at the police station or the court house.

What concerns management is the hiring of someone who has a criminal record of convictions that should have screened out this person before being hired. But the EEOC concludes that many persons are adversely affected early in the application process if they are asked about arrests. Convictions are another matter. The employer can and should ask about misdemeanor or felony convictions as part of the application process. A separate criminal record check can confirm the matter. This line of questioning is best saved for near the end of the vetting process so no discriminatory references can be drawn.

Security employers have higher standards than for other employment sectors concerning past criminal convictions. Any felony convictions may serve to exclude an applicant for consideration in security employment. Misdemeanor convictions may or may not be the basis for exclusion, depending on the nature of the offense, the age of the offender at that time, the extent of the punishment, and how long ago the incident occurred.